It’s that time of year again. Seasonal holiday displays are beginning to dot our subdivisions and public spaces. Although most will conform to mainstream cultural, religious and societal norms, the ones that don’t create discomfort or even outrage, spurring calls for government authorities to order them to be removed. When governments do not act, it is not unheard of for citizens to take on the task themselves by removing or destroying the offensive display, risking criminal charges or even arrest in doing so. More >

Zoning categories and the uses that are allowable in each of them are subject to the possibility of amendment by the legislative body. This means that a property can apply to the planning authority to change his zoning designation or to add uses within that designation that are otherwise prohibited. However, many citizens incorrectly believe that zoning designations are permanent and that uses within each zoning category never change. When a neighboring property owner files to rezone property, asking to amend the zoning ordinance to add a new use to a particular category that is prohibited, the neighbors become alarmed at the potential change to their area. Although neighboring property owners have a right to attend hearings and object to the proposed changes, they have no final say or authority as to whether the governmental body approves it. This can lead to zoning battles. More >

Generally speaking, land use regulations and zoning laws arise from practical and aesthetic concerns and considerations, and are driven by state and local law. However, sometimes a community’s desire to regulate a seemingly minor issue can implicate our most fundamental rights under the Constitution. Last month, we discussed the Supreme Court’s decision in Reed v. Town of Gilbert, which involved an analysis of the First Amendment’s applicability to local sign ordinances. Finding that restricting signage based on the content of the sign was impermissible under the First Amendment, the Supreme Court struck down Gilbert’s ordinance. Commentators have since described this as the “sleeper case” of the Supreme Court’s term, representing a substantial shift in First Amendment jurisprudence. The case has since been used to justify striking down local and state bans on political “robocalls” and panhandling, and could possibly extend to call in to question laws aimed at consumer protection and securities law. Indeed, Reed and the reaches of the First Amendment are currently in the forefront of controversies involving everything from soda labelling, to the rights of topless performers operating in Times Square. More >

Inverse condemnation is a far more complex subject than it may seem at the outset. While condemnation proceedings are initiated by the government to acquire property and pay the owner just compensation, the general rule regarding inverse condemnation is that the owner of the property, and not a government entity, seeks to recover damages for a loss in value of the property as a result of governmental action. There are several avenues from which this type of action can arise, as there are multiple ways property can be affected by government activity. Rather than there being a cut and dried standard for what inverse condemnation looks like, each case involving it arises is based on a set of unique factual circumstances. More >

Many local governments have ordinances on the books that regulate the number, size, location, and duration of political yard signs. However, many of these regulations probably do not pass constitutional muster and are not enforced. The difficulty with enacting yard sign regulations is that the signs constitute political speech which is one of the most precious and protected forms of free speech guaranteed by the First Amendment of the United States Constitution. Courts across the country have consistently ruled that political speech cannot be regulated more stringently than commercial speech. For example, a local ordinance that sets time limits on how long political yard signs can be placed prior to an election and a time to remove them after the election are typically invalidated because other types of signs, such as real estate signs, have no durational limits. Similarly, ordinances that limit the number of political signs to no more than two per property have been struck down. Limiting the number of signs restricts free speech because the household residents may have different political viewpoints. Further, many election seasons are to fill the seats of many different offices, thus limiting the number of signs impermissibly limits the number of candidates that a property owner can support. Regulating the size of political yard signs is problematic too if the local sign ordinance limits political signs to a smaller size than permitted for other types of signs. More >

Agritourism is becoming an increasingly popular way for rural property owners to earn additional income from agricultural properties. In additional to more traditional farm tours and seasonal activities such as hay rides, corn mazes and u-pick fruits, farm owners are devising new ways to bring people to their door by offering more entertainment-oriented activities. Some farmers are offering their barns as venues for weddings, parties, dances and other special events. Others are opening their homes to visitors for vacations so guests can experience life on a working farm by helping out with routine farm chores such as feeding or herding the livestock, milking the animals, making cheese, collecting eggs, picking vegetables and preparing farm fresh meals. This may sound simple and easy to accomplish but often those who want to offer agritourism activities on their rural properties are blindsided when they run in to unanticipated difficulties with regulatory authorities over building code, fire code or zoning issues. More >

Many communities that have adopted zoning laws governing the uses that are allowed in the various zones have also adopted overlay zones that control the same property. Overlay zones are just that -- they add another layer of regulation to those that control the underlying zone. Overlay zones are intended to add additional protection the underlying area. The most common types of overlay zones are intended to protect historic areas, neighborhoods or buildings with unique characteristics or environmentally sensitive areas. More >

Zoning regulations are a reflection of a community’s identity and the image it desires to project to the larger world. Some otherwise lawful activities are perceived to be unsavory, immoral or conducive to crime. As such, they are often regulated more stringently than other lawful businesses. Although some of these activities can generate more police reports and government oversight than other kinds of businesses, often such establishments are safe and well operated. Even so, many community residents have moral, religious, or cultural beliefs that cause them to oppose the existence of these types of businesses anywhere at all. Not only do they fight to shutter existing businesses, but they also support zoning regulations that would prevent any new such businesses from opening within the borders of their community. Examples of such activities include sexually oriented businesses (such as adult nightclubs and book stores), gambling establishments, tattoo parlors/ piercing studios, pool halls and internet cafes that offer video games with sweepstakes prizes. More >

In communities that have adopted zoning regulations, boards of adjustment serve as a relief valve that can allow for the use of property that is not otherwise permitted under the property’s specific zoning category . Boards of adjustment have the power to grant dimensional variances, which are deviations from the dimensional requirements of a zoning ordinance pertaining to height, width, location of structures, or setbacks. For example, if a property owner wants to build or extend a structure within the required side, front or rear yard, she can appeal to the board to request permission to build closer to the property line. Applicants for a variance must show a need for the variance and that they are not unnecessarily trying to circumvent the zoning regulations. An unusually shaped lot or other unique physical characteristics of the particular property that make it hard to comply with the setback or height requirements are typically justifications for a variance. In one Kentucky case, the appellate court found that it was appropriate to grant a variance to allow building a house closer to the street because there was a sinkhole in the rear yard that prevented building the house farther back. When a board grants a variance it must make certain statutorily required findings of fact. Variances run with the land, so subsequent owners acquire the benefit without further approvals. More >

Modern technology and our ever-changing economy are causing more people to consider starting up or basing their existing businesses from home. Many communities have embraced this concept and have enacted zoning regulations that make it easier to do just that. Some jurisdictions, however, still have regulations on their books that make operating a business from home a real challenge. Regardless of where your community falls on this spectrum, it is important to know what the rules are before you start operating a business from your residence. If you live in a community without any zoning regulations you can do just about anything you want to on your property but it is advisable to check to make sure there are no recorded restrictive covenants that limit or prohibit non-residential or commercial activities in the subdivision. Assuming that there are zoning laws that apply to the property, or if you are uncertain whether your area is subject to zoning, the first step is to call the local government. There are many different names for the division of government that may regulate such matters, such as building inspection, codes and permits, or the zoning office, but if you call the general city or county number and explain what you need to know, they will direct you to the right place. More >